Films & Publication Amendment Bill: return by President, reconsideration & finalisation

Meeting report

Opening Remarks
The Chairperson acknowledged the large presence of legal experts that had assembled. This was an indication that the Committee viewed the President’s referral of the Films and Publication Bill in a serious light. In addition, he stressed that the intention of the legislature was not to undermine the Constitution but to protect children from exposure to disturbing and harmful material.
 
Mr K Morwamoche (ANC) noted that there were recent media reports regarding the Auditor-General’s (AG) investigation into the “Who Am I Online” tender. As a result, he asked the Chairperson to update the Committee on the status of the investigation.
 
Mr Chauke noted that the Committee had requested the investigation as they were of the view that there was corruption involved in the tender. He stated that he would invite the Minister of Home Affairs to brief the Committee on this matter. Also, he was mindful that Parliament  would be dissolved shortly due to the impending elections and that the Committee might not have the opportunity to see the report before then. In that case, he was adamant that the new Parliament  should be furnished with the report. Finally, he hoped to resolve this matter as soon as possible because the AG’s report was already in the public domain.
 
Mr Chauke noted that in terms of the agenda, the Committee was also supposed to have discussed the agreement between Lesotho and South Africa concerning the movement of people. However, this topic would be deferred because Parliament’s legal section had not yet had the opportunity to scutinise the agreement.
 
Referral of Films and Publication Amendment Bill to National Assembly for Reconsideration
The Committee Secretary noted that the President, acting in terms of section 79(1) of the Constitution, had referred the Bill back to the National Assembly for reconsideration as he had reservations about the constitutionality of clause 29 of the Bill (which sections 24A(2), 24A(3) and 24A(4) in the Principal Act).
 
The President argued that sections 24A(2) and 24A(3) were inconsistent with the rule of law as it subjected persons to criminal prohibitions and sanctions on the basis of a prohibition which was not clear, predictable, certain and ascertainable.
 
Furthermore, the President submitted that section 24(4) was irrational insofar as it created a prohibition based on a consideration which did not have any rational connection to the system of classification provided in clauses 19 and 21 of the Bill.
 
Clause 29: inserting Sections 24A(2(c) and 24A(3)
Mr M Sibande (ANC) advised that the legal experts should guide the Committee on how best to respond to the matters raised by the President.
 
The Chairperson noted that there was only one clause with which the President had issue. He asked the parliamentary legal advisor to advise the Committee.
 
Adv Refilwe Mathebathe, Legal Advisor: Parliamentary Legal Services, noted the President’s contention that sections 24A(2)(c) and 24A(3) were inconsistent with the rule of law as it subjected persons to criminal prohibitions and sanctions on the basis of a prohibition which was not clear, predictable, certain and ascertainable. Personally, she agreed with the President’s opinion. The phrase appearing in both sections “would have been classified as X 18 had it been submitted for classification”, did not provide certainty and was likely to be held unconstitutional as it required a member of the public to guess a probable classification at the risk of a criminal investigation. Accordingly, she recommended that the phrase be deleted from both sections.
 
Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, did not support her colleague’s interpretation that the phrase was vague and uncertain. She pointed out that section 24A(2)(c) emphasised a matter that was already catered for under section 24A(2)(a). In addition, the intention of the legislature was to ensure that the person who failed to submit (material) for classification was also subjected to criminal sanction under this section. However, there would be no harm in deleting the phrase because the intention of the legislature would still be realized. In conclusion, she agreed that the phrase should be deleted, but not for reason of unconstitutionality but because it was superfluous.
 
Mr Morwamoche agreed with both legal experts and maintained that the omission of the phrase would not interfere with the aims and objectives of the Bill.
 
Ms Lufundo reminded the Committee that the same phrase should be deleted from section 24A(3).
 
Members were generally satisfied that the proposal covered the concerns raise by the President.
 
Clause 29: inserting Section 24A(4)
Adv Mathebathe noted the President’s contention that section 24A(4) improperly prohibited the right of freedom of expression as contained in section 16(1) of the Constitution in a manner that was overbroad. The President had objected to the phrase “or which contains depictions, descriptions or scenes of a sexual conduct to a person under the age of 18 years”. It was argued that the words were not rational or consonant with the classification system set in out in section 16(4) in that it created an offence for the distribution or exhibition of a film, game or publication which contained depictions, descriptions or scenes of a sexual conduct, to a persons under the age of 18, regardless of whether the film, game or publication was classified x 18 or was classified with an age restriction lower than 18 years. 
 
Adv Mathebathe believed that the President’s concerns would be addressed by inserting the word “explicit” before sexual conduct.
 
Adv Mongameli Kweta, Senior State Law Advisor, believed that the phrase was superfluous and called for its deletion.
 
Adv Mathebathe disagreed with this analysis. She explained that the section aimed to criminalise films, games and publications that had been classified as X 18 as well as those materials that had not been classified but which depicted explicit sexual conduct. In effect, the removal of that phrase meant that those materials which had not been classified but still depicted explicit sexual conduct would not be criminalized.
 
Ms Phumele Ngwena, Senior State Law Advisor, pointed out that the section created two offences and advised that they should be separated into two paragraphs.
 
Adv Mathebathe agreed with this recommendation. 
 
Adv Kweta referred the Committee to subsection 24A(2) and he believed that this covered the concerns expressed by Adv Mathebathe.
 
The Chairperson allowed the legal experts some time to consult with each other on correct drafting.

After a few minutes, Adv Mathebathe read out the following proposal:

”Any person who knowingly distributes or exhibits a film, game or publication
classified as X 18; or
which contains depictions, descriptions or scenes of explicit sexual conduct, other than for medical or educational purposes
to a person under the age of 18 years, shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment. “
 
She stated that this amendment would require a consequential amendment to the definition of “sexual conduct” in Clause 1 which would now omit the phrase “for the purposes of sections 16 and 18” as it would now apply to section 24A(4) as well. 
 
The Committee accepted this amendment.
 
The Committee adjourned to allow the legal experts to formalise the amendments (E version of the Bill) and incorporate all the amendments into the Bill (F version of the Bill) so that the Committee could vote on it later in the day.
 
The Committee reconvened in the afternoon to vote on the Bill.
 
Mr Chauke said that he valued the hard work done by the legal advisors and thanked them for their contribution.
 
Proposed Amendments to the Films and Publications Amendment Bill
The Chairperson read out the new amendments that were introduced to Clauses 1 and 29 of the Bill (see Document) and the Members did not raise any objection to the drafting.
 
Voting on the Bill
The Committee unanimously agreed to all the changes and adopted the Bill with amendments.
 
The Chairperson was satisfied that the Bill did not deviate from the legislature’s original intention.
 
The meeting was adjourned.